Case Number: 160199

Whether the HSE's refusal of access to records relating to its handling of an apology to a service-user is justified under section 30(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

On 28 January 2016 the applicant made an FOI request to the HSE for "all records concerning the delivery of an apology to a client or clients of WIDA (Waterford Intellectual Disability Association)...", including contacts between named HSE managers and staff from November 2015. By letter dated 6 April 2016, the HSE refused access to the records, on the basis that they were exempt under section 30(1)(a) of the FOI Act. On 8 April 2016, the applicant applied for an internal review. By letter dated 4 May 2016, the HSE issued its internal review decision, in which it affirmed the original decision. The applicant applied to my Office for a review of the HSE's decision on 4 May 2016.

In conducting this review I have had regard to the HSE's decision; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; the submissions of the HSE; the content of the withheld records, provided to this Office by the HSE for the purposes of this review and to the provisions of the FOI Act.

Scope of the Review

The question for this review is whether the HSE is justified in withholding access to the records numbered 0; 0a; 1a-1i; 2; 3; and 4 by the HSE, under section 30(1)(a) of the FOI Act.

It became clear in the course of the review that the HSE's decision was not accompanied by a schedule of the records which it had identified as coming within the scope of the request. This is unsatisfactory and goes against the guidelines of the Central Policy Unit of the Department of Public Expenditure and Reform (DPER) on FOI decision-making and scheduling of records. Consequently, the applicant was not made aware of the dates or descriptions of the records to which the HSE applied the section 30(1)(a) exemption. My Office prepared a schedule - attached at Appendix 1 - with a view to giving the applicant some indication of the nature of records identified and dealt with in my decision. It is based on a more detailed HSE schedule supplied to my Office which might disclose information in records claimed to be exempt.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, it is important to note that section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the HSE to satisfy me that its decision is justified.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner[2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. The extent to which I can describe the records at issue is particularly limited in this case.

Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 37(1) - Personal Information

The HSE did not claim the section 37 exemption over the records. However, having reviewed their content, I consider it appropriate to consider it given the extent to which the records contain personal information.

Section 37(1)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: "(i) information relating to the educational, medical, psychiatric or psychological history of the individual", "(iii) information relating to the employment or employment history of the individual" and "(v) information relating to the individual in a record falling within section 11(6)(a)". Section 11(6)(a) of the FOI Act refers to personnel records of members of staff of FOI bodies.

Firstly, I consider that there can be no doubt but that names, initials and any references which might lead to the identification of the service-user concerned and family members, are personal information under the FOI Act.

Secondly, paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. Paragraph II also excludes certain information about service providers. However, as this Office observed in Case 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally". As noted above, the personnel records of staff members of FOI bodies are included within the definition of personal information. I do not consider that the references to named staff comprise "personnel records" in this instance.

The records under review concern the handling of an apology to a service-user of the HSE. This apology and events surrounding it have been the subject of consideration by the Public Accounts Committee (PAC) and have attracted considerable media attention. The HSE says that it is conducting an internal review into the handling of the apology and referred - albeit in its arguments concerning section 30(1)(a) - to the need to have fair procedures where staff actions are being investigated. In those circumstances, I am satisfied that the names of certain HSE staff members fall within the definition of "personal information" in the context in which they appear in the records and do not fall into the categories of information in paragraph I of section 2 of the FOI Act. In addition, there are small amounts of personal information in the records that do not concern the individuals' official duties.

Having regard to the above, I find that the following information is exempt from release under section 37(1):

Record 0: the name after "meeting with" in "Attachments" heading and the names in the second paragraph of the email dated 25 January 2016; the first sentence of the last paragraph in the email dated 25 January 2016
Record 0a: all names from "Subject" onwards
Record 1a: the fifth bullet point on the first page and the same words where they appear on the third bullet point on the second page
Record 1b: all names (including the abbreviated name in capital letters) except the sender's name and the words from "As" to the word before "rang" in the third paragraph of the email dated 28 January 2016 15:09
Record 1c: all names from "Subject" onwards
Record 1d in its entirety
Record 1e: all names except the sender's name in first email; the second email in its entirety
Record 1f: all names (and abbreviated names) and the first two sentences of the email 10 December 2015 15:28
Record 1i: the last ten words of the first paragraph
Record 2: all names except the sender's and recipient's name
Record 3: name of addressee
All records: all mobile phone numbers and telephone numbers identifying people whose names are to be redacted

In deciding on the above redactions, I have considered section 18 as outlined above and consider that in the case of record 1d and part of 1e, the extent of the redactions would be such as to render the remaining content misleading. In the case of the other records, I am satisfied that it is practicable to redact the names and small amounts of other material without causing the resulting records to be misleading.

This is subject to the provisions of sections 37(2) and 37(5), which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the records which I have found to be exempt under sections 37(1). That is to say, (a) the information contained in the remaining records does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the request would benefit the person to whom the information relates.

The July 2011 Supreme Court judgment in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC 26 ("the Rotunda case") outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Therefore in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. I note in this regard that the applicant is not arguing that there is an overriding public interest in his having access to the records of the service-user and the family. Instead, he argues that the public interest lies in "the public gaining an understanding of how its representatives in the Dáil were misled" in the context of information provided to PAC by the HSE. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

I am conscious that in the case of the service-user concerned and the broader context of the apology at issue, the information is of a sensitive nature. I believe that there is a public interest in transparency around the activities of the HSE. However, I consider that this public interest would be met to a large extent by releasing the information which I have found not to be personal information. On balance, I do not believe that this public interest overrides the Constitutional rights to privacy of the service-user (and their family members) or the staff members to whom the personal information relates. I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

I find that the HSE is justified in withholding access to the information which I have identified as being personal information, under section 37(1) of the FOI Act.

Section 30(1)(a) - Functions and negotiations of FOI bodies

I will consider section 30(1)(a) in relation to the remaining information in all of the records, which I will refer to as "the records".

Section 30 of the FOI Act provides, among other things that:

"(1) A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof,

...

(2) Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.".

When a public body relies on section 30(1)(a), it should first identify the potential harm to the relevant function specified in paragraph (a) which might arise from disclosure and secondly consider the reasonableness of the expectation that the harm will occur. The FOI body must show that there are adequate grounds for its expectation. It should identify the potential harm or prejudice to the relevant test, examination etc and show how releasing the record could reasonably be expected to prejudice the effectiveness of tests or examinations etc. It should then go on to consider the public interest test under section 30(2).

Submissions

The HSE submits that releasing the records could harm two processes: its own internal review and a review by Conor Dignam SC, which is being conducted on behalf of the Department of Health and may include how the apology was handled.

In relation to its internal review, the HSE says that the records publicly identify staff involved in the handling of the apology and the manner in which the apology was handled, including communications between key staff. It submits that releasing the records at this stage could prejudice the effectiveness of the internal review, by disclosing matters which may have to be dealt with in other fora (e.g. disciplinary actions), thereby prejudicing fair procedures and the outcome of the review which is ongoing.

In relation to Conor Dignam SC's review, the HSE says that its scope concerns two reports into the care of individuals in the South East and that it will inform the terms of reference of a Commission of Inquiry. As noted above, The HSE considers that this may include how the apology in question was handled. It says that it cannot determine when this process is expected to conclude.

In addition, the HSE expresses concern that releasing the records before both reviews have concluded would be unfair to the person who is the subject of the apology and will have a negative impact on them. I am conscious of the sensitivity of the matters involved. However, this submission does not link the impact to a harm to the effectiveness of the inquiries, for the purposes of section 30. Therefore I do not consider it further. In any event, I have already found that the names of, and identifying references to, the service-user and family members, are exempt under section 37.

Finally, the HSE has drawn my attention to a "wide-ranging" Garda investigation into related matters. As it does not invoke FOI exemptions in relation to that investigation, I do not consider this point further.

The applicant submits that the HSE has appeared before the PAC to answer questions about this matter and that a review exercise by the HSE could not be compromised by the publication of information which was already intended to be put before the PAC. He further submits that the Dignam review does not cover the issue of the apology and notes that the HSE does not refer to this review in its internal review decision.

Dignam Review

In its submissions, the HSE says that Conor Dignam SC is conducting his review on behalf of the Department of Health. I therefore accept for the purposes of this review that the Dignam review process is a function for the purposes of section 30(1)(a), in that it involves an investigation or inquiry on behalf of an FOI body. However, in my view, the HSE's submissions in relation to the Dignam review amount to a mere assertion of harm. It has not demonstrated how disclosing these particular records could reasonably be expected to prejudice that review. It is not at all clear that the review is concerned with the apology. In this regard, I deal below with the extent to which the information in the records is already in the public domain through the availability of the HSE's contributions to the PAC proceedings. As I understand it, there have been various extensions of the deadline and the report has not yet been submitted. The HSE has not satisfied me that section 30(1)(a) applies in relation to the Dignam review.

HSE's internal review

I accept that the HSE's internal review into how it handled the apology is a function for the purposes of section 30(1)(a), in that it involves the investigation or inquiry by the HSE.

I can see that the records disclose the names of certain staff members and details about the manner in which the apology was handled. I have found certain staff members' names to be exempt under section 37(1) and will now consider information about the manner in which the apology was handled.

In assessing whether it is reasonable to expect that disclosing such information could cause the harm alleged, it is relevant to consider what information about the apology is already in the public domain. The fact that the subject of the records and much of their content has been put into the public domain via the PAC cannot be ignored. In this regard, I have read the HSE's letter to PAC dated 21 January 2016 and the transcript of the PAC proceedings dated 2 February 2016. Both documents are available online. The HSE's letter to the PAC sets out details of the apology, which details it subsequently retracted. The transcript of the PAC proceedings records a discussion between the HSE and PAC members, in which the HSE outlines the circumstances of the apology at issue.

Having compared these documents with the records at issue, I believe that much of the information about the handling of the apology is already a matter of public record. Both the HSE's letter and the PAC transcript disclose the nature of the controversy over whether an apology had actually been given; the relevant chronology of events; the positions of the staff members involved and the way in which the HSE handled the apology and communicated it internally. Having reviewed the records, I accept that their disclosure would flesh out the information which the HSE has already given to PAC. However, I am not satisfied that it is reasonable to expect that releasing them could prejudice the effectiveness of the HSE's internal review into the matter, or the procedures or methods employed thereof, to the extent envisaged by section 30(1)(a). This is particularly the case having regard to the fact that I am directing the redaction of the personal information in those records.

Email correspondence about the applicant's FOI request

Record 4 consists of an email from the applicant and emails between HSE staff about responding to the applicant's email. Rather than relating to the handling of the apology, it concerns how best to respond to the applicant's email. I am therefore not satisfied that releasing it could reasonably be expected to cause the harms which the HSE envisages.

I therefore find that section 30(1)(a) does not apply to the records.

Section 30(2) - The Public Interest

Having found that section 30(1)(a) does not apply to the records, I am not required to apply the public interest balancing test under section 30(2) of the FOI Act. Nevertheless, I would like to make observations on where I would consider the balance of public interest to lie in this case. On the one hand, I agree with the HSE's submission that section 30(1)(a) itself acknowledges a public interest in ensuring the effectiveness of investigations and inquiries by FOI bodies. On the other hand, section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of its activities and to strengthen its accountability and improve the quality of its decision-making. In weighing up these competing interests, I recognise the public interest in transparency around the way in which the HSE performs its functions. Equally, I recognise the public interest in the conduct of an effective internal review by the HSE. However, in assessing this, I again consider it relevant that much information about the handling of the apology is already in the public domain. Accordingly, if I were required to consider section 30(2) in this case, I would find that on balance, the public interest would be better served by releasing the records.

Finding

I therefore find that the HSE is not justified in withholding access to the records under section 30(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision and direct the release of the records, subject to the redaction under section 37 of the personal information contained in the records, as identified above.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.